Scott v. Greater Richmond Transit Co.

• Decision Date: 01 March 1991
• Docket Number: No. 900836,900836
• Citation: 402 S.E.2d 214,241 Va. 300
• Court: Virginia Supreme Court
• Parties: Angela D. SCOTT v. GREATER RICHMOND TRANSIT COMPANY. Record

Page 214

402 S.E.2d 214

241 Va. 300

Angela D. SCOTT v. GREATER RICHMOND TRANSIT COMPANY.

Record No. 900836.

Supreme Court of Virginia.

March 1, 1991.

William P. Hanson, Jr., Richmond, for appellant.

Beverly A. Burton, Asst. City Atty., for appellee.

Present: All the Justices.

WHITING, Justice.

In this personal injury case, the primary issue is the admissibility of a document as a past recollection recorded.

On November 11, 1986, Angela Scott sustained personal injuries when the left rear corner of a bus owned by Greater Richmond Transit Company (bus company) struck the passenger door of Scott's two-door car. Scott's car was parked on the left side of a one-way street in the City of Richmond, and her sister, Iris Scott, was seated in the driver's seat. Scott contended that she was "about to enter [her] car [when the] bus come by, hit [her] car door and knocked in the car door and swung back and knocked [her] in the car." (Emphasis added.)

The collision damaged the bus on its left side, 12 inches from the rear of the bus. The bus company contends that the location of the damage established that Scott had entered the car and that as the rear of the bus was passing Scott's car she pushed the car door out in order to pull in her umbrella and get enough leverage to close the door. The bus company argues that this movement caused the door to strike the left rear corner of the passing bus.

At a jury trial on March 29, 1990, a bus company investigator, Grant Baskerville, testified that he remembered writing out a statement from a passenger in the car on the day of the accident, but that he had no recollection of what the passenger had told him regarding the details of the accident. The court admitted the following statement as a past recollection recorded:

Statement of other Driver/Passengers

Ms. Iris Scott stated that she was entering the parked car on right side, she had seated [sic] and was closing the door when it was struck by a passing bus. [S]he saw the bus before entering the car, was trying to get her umbrella in the door.

(Emphasis added.) Baskerville had circled the word "Passengers" on the above document, but apparently mistakenly attributed the statement to Iris Scott, the plaintiff's sister who was in the driver's seat, rather than to the plaintiff Angela Scott.

The jury returned a verdict for the bus company, and the trial court entered judgment on the jury's verdict. Scott appeals.

Scott contends that the trial court erred in admitting the statement because of the provisions of Code § 8.01-404.

As pertinent, Code § 8.01-404 provides:

A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, relative to the subject matter of the civil action, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to the particular occasion on which the writing is supposed to have been made, and he may be asked if he did not make a writing of the purport of the one to be offered to contradict him.... This section is subject to the qualification, that in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness and no extrajudicial recording of the voice of such witness, or reproduction or transcript thereof, as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case.

(Emphasis added.)

The exclusionary sentence embodying the qualification was added in 1919. Code § 6216 (1919). We have said that

[t]he purpose of the addition to the statute was to correct an unfair practice which had developed, by which claim adjusters would hasten to the scene of an accident and obtain written statements from all eye-witnesses. Frequently, these statements were neither full nor correct and were signed by persons who had not fully recovered from shock and hence were not in full possession of their faculties. Later, such persons, when testifying as witnesses, would be confronted with their signed statements and, after admitting their signatures, these statements would be introduced in evidence as impeachment of their testimony given on the witness stand.

Harris v. Harrington, 180 Va. 210, 220, 22 S.E.2d 13, 17 (1942); see also Alspaugh v. Diggs, 195 Va. 1, 77 S.E.2d 362 (1953); Liberty Mut. Ins. Co. v. Venable, 194 Va. 357, 73 S.E.2d 366 (1952); Robertson v. Commonwealth, 181 Va. 520, 25 S.E.2d 352 (1943).

Scott contends that the exclusionary sentence of Code § 8.01-404 prohibits the bus company's use of the Baskerville document to contradict Scott, whether in her cross-examination or by its use as part of the bus company's case in chief. We disagree.

In every case except one in which we applied the exclusionary sentence of Code § 8.01-404, the written document was either signed by the witness or in the handwriting of the witness. Ketchmark v. Lindauer, 198 Va. 42, 92 S.E.2d 286 (1956); Alspaugh v. Diggs, 195 Va. 1, 77 S.E.2d 362 (1953); Liberty Mut. Ins. Co. v. Venable, 194 Va. 357, 73 S.E.2d 366 (1952); Solterer v. Kiss, 193 Va. 695, 70 S.E.2d 329 (1952); Robertson v. commonwealth, 181 Va. 520, 25 S.E.2d 352 (1943); Saunders v. Hall, 176 Va. 526, 11 S.E.2d 592 (1940); Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343 (1939); Virginia Elec. & Power Co. v. Mitchell, 159 Va. 855, 164 S.E. 800 (1932); Washington & Old Dominion Ry. v. Weakley, 140 Va. 796, 125 S.E. 672 (1924). The exception is Lee v. Artis, 205 Va. 343, 136 S.E.2d 868 (1964), in which a plaintiff's contradictory statement was contained in a police officer's written summary of what the plaintiff had told him about the accident. Id. at 345, 136 S.E.2d at 870. The evidence was held inadmissible for a number of reasons, including that the exclusionary sentence of the predecessor of Code § 8.01-404 also applied. To the extent that Lee 's application of the predecessor to Code § 8.01-404 is inconsistent with this ruling, it is overruled.

Even so, Scott argues that her statement was not admissible as a past recollection recorded. Citing McCormick on Evidence §§ 299, 302 (E. Cleary 2d ed. 1972), we applied this exception to the hearsay rule in Ashley v. Commonwealth, 220 Va. 705, 708, 261 S.E.2d 323, 325 (1980). McCormick's current treatise lists the following requirements for use of this hearsay exception:

(1) [T]he witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.

McCormick on Evidence § 299 (E. Cleary 3d ed. 1984).

Scott contends that Baskerville's evidence fails the first requirement because Baskerville had firsthand knowledge, not of the collision, but only of Scott's statement. Here, however, the event we are concerned with is Baskerville's firsthand knowledge of Scott's statement, not his knowledge of the collision itself. ^*

Further, Scott argues that Baskerville's evidence fails the fourth requirement because of his obvious error in noting that the statement was made by Iris Scott, the person seated in the driver's seat, and not Angela Scott, the plaintiff. Scott did not claim that Baskerville had inaccurately recorded her statement. Baskerville, however, testified that he had taken the statement of the passenger in the Scott car, not its driver. Indeed, the content of the statement itself showed that it must have been made by Angela Scott, who was a...